Citation Nr: 0027191
Decision Date: 10/13/00 Archive Date: 10/19/00
DOCKET NO. 98-17 668 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for post traumatic
stress disorder (PTSD).
2. Entitlement to service connection for tinnitus.
3. Entitlement to a compensable evaluation for a bilateral
hearing loss disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
L. M. Barnard, Counsel
INTRODUCTION
The veteran served on active duty from June 1968 to January
1970.
This appeal arose from a June 1998 rating decision of the New
Orleans, Louisiana, Department of Veterans Affairs (VA),
Regional Office (RO), which denied entitlement to the
requested benefits. The veteran and his wife testified at a
personal hearing before a member of the Board of Veterans'
Appeals (Board) sitting in New Orleans, Louisiana.
The issues of entitlement to service connection for PTSD and
a compensable evaluation for a bilateral hearing loss
disability will be subject to the attached remand.
FINDING OF FACT
The veteran has not been shown to suffer from tinnitus which
can be related to his period of service.
CONCLUSION OF LAW
The veteran has not presented evidence of a well grounded
claim for entitlement to service connection for tinnitus.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran contends that service connection is warranted for
tinnitus as this condition is directly related to his
service-connected bilateral hearing loss disability. He has
asserted that his hearing loss caused the tinnitus.
Under the applicable criteria, service connection may be
granted for disabilities which are proximately due to or the
result of a service-connected disease or injury. 38 C.F.R.
§ 3.310(a) (1999).
Initially, the Board must determine whether the veteran has
submitted a well grounded claim as required by 38 U.S.C.A.
§ 5107(a). A well grounded claim is one that is plausible,
capable of substantiation or meritorious on its own.
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78,
81 (1990). While the claim need not be conclusive, it must
be accompanied by supporting evidence. Tirpak v. Derwinski,
2 Vet. App. 609, 611 (1992).
To establish that a claim for service connection is well
grounded, a veteran must demonstrate the incurrence or
aggravation of a disease or injury in service, the existence
of a current disability, and a nexus between the inservice
injury or disease and the current disability. See Epps v.
Gober, 126 F.3d 1464 (1997). Medical evidence is required to
prove the existence of a current disability and to fulfill
the nexus requirement. Lay or medical evidence, as
appropriate, may be used to prove service incurrence. See
Caluza v. Brown, 7 Vet. App. 498, 506 (1995).
In this case, even presuming the truthfulness of the evidence
for the purpose of determining whether the claim is well
grounded, as required by Robinette v. Brown, 8 Vet. App. 69,
73-74 (1995), and King v. Brown, 5 Vet. App. 19, 21 (1993),
for the reasons stated below, the record fails to establish
that the veteran's claim is plausible.
The veteran has contended that he suffers from tinnitus
caused by his service-connected bilateral hearing loss
disability. A review of his service medical records found no
complaints of or treatment for tinnitus. During a VA
examination conducted in January 1993, he denied suffering
from this condition. In an August 1997 statement, he
indicated that he had experienced ear infections in service;
he stated that he still had ringing in the ears. A VA
examination conducted in September 1997 included a normal
examination of his ears. He reported having intermittent
bilateral tinnitus, which had been present for about two
years. During a May 2000 personal hearing, he stated that he
had ringing in his ears which would come and go.
"Where the determinative issue involves either medical
etiology or a medical diagnosis, competent medical evidence
is required to fulfill the well grounded claim requirement of
Section 5107(a); where the determinative issue does not
require medical expertise, lay testimony may suffice by
itself." Godfrey v. Brown, 7 Vet. App. 398, 405 (1995).
After reviewing the evidence of record, the Board observes
that there is no competent (i.e., medical) evidence
suggesting that the veteran's currently diagnosed tinnitus is
related to his service-connected bilateral hearing loss
disability. There is no objective medical evidence of record
that indicates that the veteran's tinnitus is etiologically
related to his hearing loss disability. While the veteran
has expressed his belief that such a relationship exists, he
is not competent, as a lay person, to render an opinion as to
medical causation. See Espiritu v. Derwinski, 2 Vet. App.
492 (1992).
The appellant has not informed VA of the existence of any
specific evidence germane to any claim at issue that would
complete an incomplete application for compensation, i.e.,
well ground an otherwise not well grounded claim, if
submitted. Consequently, no duty arises in this case to
inform that appellant that his application is incomplete or
of actions necessary to complete it. See 38 U.S.C.A.
§ 5103(a) (West 1991); Beausoleil v. Brown, 8 Vet. App. 459 ,
465 (1996); Johnson v. Brown, 8 Vet. App. 423, 427 (1995);
cf. Robinette v. Brown, 8 Vet. App. 69 (1995) (when a claim
is not well grounded and claimant inform VA of the existence
of certain evidence that could well ground the claim, VA has
duty under 38 U.S.C.A. § 5103(a) to inform claimant that
application for compensation is incomplete and to submit the
pertinent evidence).
ORDER
Service connection for tinnitus is denied.
REMAND
The veteran has contended that service connection for PTSD is
warranted. He asserts that this condition has been diagnosed
by his private physician, and that he currently experiences
nightmares, flashbacks and depression.
In reviewing the evidence of record, the Board notes that the
issue of entitlement to service connection for PTSD was
initially denied by the RO in August 1994; the veteran was
notified of this decision on August 18, 1994. A rating
action was then issued on August 31, 1994, which confirmed
and continued the earlier rating action. He was notified of
this decision on September 6, 1994. The veteran failed to
disagree with either of the decisions within one year of
notification of them; therefore, these decisions became final
and cannot be reopened absent the submission of new and
material evidence. See 38 U.S.C.A. §§ 5108, 7105 (West
1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302 (1999).
However, the Board's review indicates that the RO did not
handle this issue on a new and material basis; rather, the
issue was dealt with on a de novo basis. Since the Board is
proposing to consider this case on a basis not considered by
the RO (that is, whether the veteran has presented new and
material evidence to reopen his claim for service connection
for PTSD), it is determined that, in order to avoid any
prejudice to the veteran and in order to allow him to present
evidence and argument on the newness and materiality of the
evidence submitted since the 1994 denial, the RO should be
given the opportunity to review the case prior to a final
determination by the Board. See Bernard v. Brown, 4 Vet.
App. 384 (1993).
VA has a duty to assist the veteran in the development of all
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1999). This includes the duty
to obtain a VA examination which provides an adequate basis
upon which to determine entitlement to the benefit sought, as
well as the duty to obtain all relevant treatment records.
Littke v. Derwinski, 1 Vet. App. 90 (1991). Examinations by
specialists are recommended in those cases which present a
complicated disability picture. Hyder v. Derwinski, 1 Vet.
App. 221 (1991).
The veteran has also contended that his service-connected
bilateral hearing loss disability is more disabling than the
current disability evaluation would suggest. The evidence of
record indicates that his hearing loss was last evaluated by
VA in September 1997. The veteran has claimed that his
hearing has worsened since this examination. Despite this
assertion, the RO made no effort to re-examine the veteran.
Moreover, he asserted during his May 2000 personal hearing
that he had had an audiological evaluation in January 1999.
A report of this evaluation is not of record. This should be
obtained and associated with the claims folder prior to a
final determination by the Board.
Under the circumstances of this case, it is found that
additional assistance would be helpful, and this case will be
REMANDED to the RO for the following:
1. The RO should readjudicate the
veteran's claim for service connection
for PTSD on a new and material basis.
That is, it should be determined whether
the veteran has submitted sufficient new
and material evidence to reopen the
previously denied claim. If the decision
remains adverse to the appellant, he and
his representative should be provided an
appropriate supplemental statement of the
case which includes the laws and
regulations pertaining to the reopening
of previously denied claims for service
connection. He should then be given the
appropriate opportunity to respond. This
issue should then be returned to the
Board for further appellate
consideration, if otherwise in order.
2. The RO should contact the veteran and
request information as to where he
underwent the January 1999 audiological
evaluation. If this was conducted at a
private facility, he should be asked to
sign and return a consent form
authorizing its release to VA. The
facility should then be contacted and
requested to provide a copy of the
evaluation. If it was conducted at a VA
facility, the RO should contact that
facility and request a copy of the
evaluation.
3. The RO should then afford the veteran
a complete VA audiological examination in
order to fully evaluate the current
nature and degree of severity of his
service-connected bilateral hearing loss
disability. The claims folder must be
made available to the examiner to review
in conjunction with the remand, and the
examiner is asked to indicate in the
examination report that the claims file
has been reviewed.
4. Once the above-requested development
has been completed, the RO must
readjudicate the veteran's claim for an
increased evaluation for the service-
connected bilateral hearing loss
disability. If the decision remains
adverse to the appellant, he and his
representative should be provided an
appropriate supplemental statement of the
case, and an opportunity to respond. The
case should then be returned to the Board
for further appellate consideration, if
otherwise in order.
5. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, including if
the requested examination does not
include all tests reports, special
studies or opinions requested,
appropriate corrective action is to be
implemented.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
C. P. RUSSELL
Veterans Law Judge
Board of Veterans' Appeals